Opinion
No. 2014NY089232.
08-25-2015
The PEOPLE of the State of New York, v. Avery PASQUAZI, Defendant.
ADA Sarah Walsh, District Attorney's Office, New York. Anthony Graniere.
ADA Sarah Walsh, District Attorney's Office, New York.
Anthony Graniere.
LISA A. SOKOLOFF, J.
Defendant Avery Pasquazi moves for dismissal of the accusatory instrument charging him with violating Vehicle and Traffic Law ("VTL") § 1192(3), Operating a Motor Vehicle While Intoxicated and VTL § 1192(1), Operating a Motor Vehicle While Impaired by Alcohol, on the ground that the complaint is facially insufficient insofar as it fails to set forth adequate indicia of the defendant's intoxication and/or impairment. For the reasons that follow, Defendant's motion to dismiss is DENIED.
In order to be facially sufficient, an information must substantially conform to the formal requirements of CPL 100.15. The factual portion of the complaint and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as non-hearsay factual allegations of an evidentiary character (CPL § 100.15[3] ) which, if true, establish every element of the offense charged and defendant's commission thereof (CPL § 100.40[1] ; People v. Jones, 9 NY3d 259 [2007] ; People v. Casey, 95 N.Y.2d 354, 360 [2000] ; People v. Dumas, 68 N.Y.2d 729, 731 [1986] ). A conclusory allegation that a defendant committed each and every element of a crime, standing alone, does not meet the reasonable cause requirement (People v. Kalin, 12 NY3d 225, 229 [2009] ).
In the November 28, 2014 information, Police Officer Alberto Torreschamorro states: "I observed the defendant operating a car. I know that the defendant was intoxicated because I observed the defendant had slurred speech, had the odor of an alcoholic beverage on his breath, [and] was unsteady on his feet."
The defense argues that the DWI paperwork served and filed at arraignments is prima facie evidence that the defendant was neither intoxicated nor impaired. Specifically, the defense notes that the supporting deposition of Officer Moix states that the defendant had .05% by weight of alcohol in his blood and the IDTU Technician Test Report of Officer Moix noted that the defendant's speech was clear, balance was steady, finger to nose test was accurate, and further indicted that "Deft not DWI or impaired." As a result, the defense contends that the accusatory instrument is insufficient to overcome the statutory presumption that the defendant was not impaired or intoxicated.
While the factors raised by the defense may ultimately convince a trier of fact that the defendant is not guilty of the charges currently pending against him, they are inappropriate for consideration on a facial sufficiency motion. In deciding a defense motion to dismiss an information for facial insufficiency, the Court reviews the information solely within its four corners (Casey, at 366). As long as the factual allegations give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (Id., at 360).
It has long been held that the indicia of intoxication and/or impairment include: watery and bloodshot eyes, a flushed face, slurred speech, the smell of alcohol on the breath, unsteady gait, disheveled appearance and erratic driving (People v. Rundblad, 154 A.D.2d 746 [3rd Dept.1989] ; People v. Gristina, 186 Misc.2d 877, 879 [2001] ; People v. Van De Cruze, 36 Misc.3d 1217(A) [2012] ). However, not all classic symptoms of impairment or intoxication need be exhibited to establish that the defendant was incapable of operating the vehicle as a reasonable and prudent driver. For instance, there is no requirement that the information allege erratic driving or that the defendant's vehicle was involved in an accident (People v. Fiumara, 116 AD3d 421 [1st Dept.2014] ).
In determining a motion for facial sufficiency, the accusatory instrument must be viewed in the light most favorable to the People (People v. Jennings, 69 N.Y.2d 103, 114 [1986] ). Reviewing the information in that light, it is clear from the officer's observations of the defendant's physical condition, that there are sufficient factual allegations in the misdemeanor information to support a finding of the offenses charged, to give the defendant sufficient notice to prepare a defense and to prevent him from being charged twice for the same offense.
The defendant's contention that the accusatory instrument fails to rebut the statutory presumption is misguided. The facial sufficiency requirement does not mandate that the information establish the defendant's guilt beyond a reasonable doubt (People v. Jennings, 69 N.Y.2d 103, 115 [1986]. The evidence in the DWI paperwork that the defendant had .05 of one per centum by weight of alcohol in his blood is prima facie evidence that he was not in an intoxicated condition or impaired by the consumption of alcohol (VTL § 1195.2(a); People v. Lawrence, 53 A.D.2d 705 [3rd Dept 1976] ), where the Court held that breath test results of .05 of one per centum by weight of alcohol in the blood is "merely prima facie evidence that a defendant's ability was not impaired and he was not intoxicated." That creates a presumption that the People are entitled to rebut at trial (People v. Blair, 98 N.Y.2d 722, 723–724 [2002] ; People v. Santos, 43 Misc.3d 136(A) [2014] ). The presumption is not one which the accusatory instrument must overcome insofar as the People's prima facie burden "is not proof beyond a reasonable doubt required at trial, nor is it the legally sufficient evidence required to overcome a motion to dismiss based upon the proof at trial (People v. Kalin, 12 NY3d 225, 230 [2009] ).
Based upon the foregoing, it is
ORDERED that the Defendant's motion to dismiss is DENIED.
Huntley, Dunaway and Johnson hearings, requested by the defense, were granted on the record on July 14, 2015.
This constitutes the decision and order of the court.